Sen. Kirsten Gillibrand, D-N.Y., is fighting for her bill to curb sexual assaults in the military. Her measure would give independent military prosecutors, rather than commanders, the power to decide which cases should be tried in military court.

Military leaders fiercely oppose moving that authority outside the chain of command, arguing that commanders are responsible for the health and welfare of their soldiers. Removing their authority would undermine their ability to lead, they say.

Gillibrand says commanders are not experts on serious assaults and are unable to prevent retaliation against victims who report crimes.

"Frankly, they've failed up until now to keep the command climate free of assault, rape and retaliation," she says.

Gillibrand's bill, which includes murder along with rape and sexual assault, was rejected by the Senate Armed Services Committee, but has gained bipartisan backing from senators outside the committee, including Republicans Rand Paul of Kentucky and Ted Cruz of Texas. She intends to bring the bill to the Senate floor, where members outside the committee have fewer ties to military.

"We created this framework because, frankly, that's what our allies have done in the past," Gillibrand told weekends on All Things Considered host Jacki Lyden.

"The UK, Israel, Australia, Canada, Germany, all have removed serious crimes outside of the chain of command to create an objective military justice system that doesn't have command influence affecting the outcome."

Interview Highlights

On commanders' responsibilities

"Only the commanders are responsible for ensuring good order and discipline and they have to set a command climate where, first of all, these rapes and assaults aren't taking place. But if they do take place, [commanders can make sure] that there is room for reporting, that people feel comfortable, that justice can be done and to assure that there is no retaliation.

"What we are finding, though, is that commanders in charge today are not assuring that for victims. Sixty-two percent of victims who have reported their crimes report that they were retaliated against for reporting."

How to define assault

"For the most part, these are violent crimes. There's no confusion. Of the 3,300 cases that were actually reported, 70 percent were violent assaults and violent rapes, criminal conduct that is based on power and domination. These are not dates that have gone badly, these are not questions of whether she said yes, then no, then yes, then no. This is not an issue of hormones, as some of my colleagues have mentioned. These are violent crimes perpetrated by, often, predators who are recidivists, and these are crimes of domination and violence."

What's at stake in this uphill battle?

"At the end of the day, commanders aren't objective. Commanders may have different training, different perspectives. They may or may not want women in the armed forces. They may not understand what sexual assault is, or what constitutes rape. They may not agree, what is a rape or not a rape. But that shouldn't be their judgment. It should be an objective, trained prosecutor who makes the decision about whether or not there is evidence to prosecute these crimes. That hopefully will instill more confidence in the system, that justice can be possible."

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Transcript

JACKI LYDEN, HOST:

It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Jacki Lyden.

The Pentagon estimates that there were 26,000 sexual assaults in the military last year alone. The Congress is divided over how to fix the problem. And in the body that's been known for its partisan battles, last week, an unusual alliance was made. Republic Rand Paul signed onto a Senate bill brought by Democrat Kirsten Gillibrand, and he urged his fellow conservatives to get on board.

SENATOR RAND PAUL: I see no reason why conservatives shouldn't support this. The only thing, I think, standing in the way is just sort of the status quo.

LYDEN: New York Senator Kirsten Gillibrand joins me now. Welcome to the program.

SENATOR KIRSTEN GILLIBRAND: Thank you.

LYDEN: So your bill would give military prosecutors, rather than commanders in the chain of command, the power to decide which of these cases to try in military court. Now other crimes in the military do go through this chain of command, which is to say that the commanders do have the power. Why should this crime, sexual assault, be any different?

GILLIBRAND: Well, our bill actually recommends that all serious crimes be elevated and taken out of the chain of command. So rape will be handled the exact same way murder is handled. Because, frankly, that's what our allies have done. The U.K., Israel, Australia, Canada, Germany all have removed serious crimes outside of the chain of command to create an objective military justice system that doesn't have command influence affecting the outcome.

LYDEN: Now military leaders and other fellow senators of yours don't support this approach. Here's Major General Margaret Woodward, director of the U.S. Air Force Sexual Assault Prevention and Response Office. She spoke to NPR just a few days ago. Let's listen to what she has to say.

(SOUNDBITE OF ARCHIVED BROADCAST)

MAJ. GEN. MARGARET WOODWARD: I am adamantly for operational commanders retaining the ability to be a part of the justice within their commands. And the reason for that is we're the ones responsible for the health and welfare of our airmen. And so removing the commander from the process, I think, will only make things more difficult.

LYDEN: Do you think this is a valid concern?

GILLIBRAND: She's mistaken in her assessment that commanders are being removed from the responsibility to handle these cases. Only the commanders are responsible for ensuring good order and discipline. And they have to set a command climate where, first of all, these rapes and assaults aren't taking place. But if they do take place that there is room for reporting and to assure that there's no retaliation.

What we are finding, though, is that commanders in charge today are not assuring that for victims. Sixty-two percent of victims who have reported their crimes report that they were retaliated against for reporting. So the person you interviewed was wrong in her assessment that they are going to be less involved or less responsible. Under the reforms that we have in place in the NDAA already, they are now being held accountable because, frankly, they've failed up until now to keep the command climate free of assault, rape and retaliation.

LYDEN: Let me just ask about the issue of intimidation by superiors as a barrier to reporting sexual assault. Surveys show that that's not the only reason that people don't report. That another reason is that they don't understand what constitutes inappropriate sexual misconduct. How can the military address those issues?

GILLIBRAND: Well, that comes down to basic training. I mean, obviously, members of the military need to understand what an actual assault is. They need to understand what consent is and what actually is rape. But for the most part, you know, these are violent crimes. There's no confusion. Of the 3,300 cases that were actually reported, 70 percent were violent assaults and violent rapes, criminal conduct that is based on power and domination.

These are not dates that have gone badly, these are not questions of whether she said yes, then no, then yes, then no. This is not an issue of hormones, as some of my colleagues have mentioned. These are violent crimes perpetrated by, often, predators who are recidivists, and these are crimes of domination and violence.

LYDEN: Let me just ask you. This is an uphill battle for you this summer. You have 51 votes now. If no one falters by the fall when this will come up for a vote, you'll still have the House of Representatives to content with. Why is this change in the military code of justice so important to you?

GILLIBRAND: Because at the end of the day, commanders aren't objective. Commanders may have different training, different perspectives. They may or may not want women in the armed forces. They may not understand what sexual assault is or what constitutes rape. They may not agree, what is a rape or not a rape. But that shouldn't be their judgment. It should be an objective, trained prosecutor who makes the decision about whether or not there is evidence to prosecute these crimes. That hopefully will instill more confidence in the system, that justice can be possible.

LYDEN: Senator Kirsten Gillibrand, senator from New York state. Thank you very much.